120, 121. The danger of allowing a defeated | nor to blame, for the withdrawal of their party to make a verdict invalid by tampering former counsel, and in their deliberations with the jury is discussed in the case of Harvey v. Beard (Colo.) 172 Pac. 420. And that was a subject of consideration by this court in the case of Van Loon v. St. Joseph Light & Power Co., 195 S. W. 737, loc. cit. 740. As suggested by Judge Graves, who wrote the opinion in that case: "A designing defendant might arrange for just such an attempt, and upon proof of the unconnected attempt to influence a juror have any and all" verdicts of a jury "set aside." [26] Doubtless the trial judge concluded that the attempt upon the jury was made by the defendants, or with their consent, and he was properly exercising his discretion in refusing to discharge it. In consideration of this motion, with respect to the act of counsel, we eliminate the alleged error of the trial court in permitting them to withdraw, having disposed of that question above, It must be kept in mind, too, that no objection was made to the proceeding at the time, and therefore no presumption of prejudice to defendants' rights can be indulged on account of alleged error. We can only consider whether the record shows that the jury was in fact unduly influenced against defendants by the statements of counsel after the withdrawal. There was nothing before the court to show such fact, except the record of what had occurred on the day of counsel's withdrawal. they could not or should not permit the occurrence in any way to influence them. The instructions indicate that the trial judge endeavored to remove from their minds any impression they might have received that such withdrawal was because of any belief in defendants' guilt of the crime for which they were on trial. The jury doubtless understood that such withdrawal was because of defendants' supposed connection with the unlawful attempt to influence the jury while counsel were managing the case, a matter which they were told should not influence them. The instructions on the whole were very fair to defendant. It was a delicate matter, requiring a nice and discriminating judgment, and we are not prepared to say that the discretion of the court was exercised unwisely or improperly. The judgment is affirmed. PER CURIAM. The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All the Judges concur. SANFORD v. HOLLAND et al. (No. 19545.) (Supreme Court of Missouri, Division No. 1. Dec. 30, 1918.) ECUTION - BURDEN TO ADDUCE FURTHER After formal proof of execution and of testator's sanity contestant has burden of adducing substantial evidence to support allegation of testamentary incapacity. 2. WILLS 55(1) TESTAMENTARY INCAPACITY-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to afford an inference that testator did not possess testamentary capacity. We do not say that counsel for defendants were acting with entire propriety in expressing their displeasure, and their reason for 1. WILLS 52(1) CONTEST-PROOF OF EXwithdrawing, in the presence of the jury. They seem to have been carried away with indignation, caused by the sudden revelation, and possibly said things which, on mature consideration, they would have considered inappropriate. It was improper for them, in severing their connection with the case, to do anything which would tend to put their clients' cause in a worse plight than that act itself would leave it. But the testimony of the juror, connecting indirectly one of the defendants with an attempt to influence him, was already before the jury without objection. The jurors had just been sworn, and had each stated that the evidence did not influence him. The attorneys had a right to withdraw, without regard to the consequences of that act. Doubtless the trial judge concluded that the impression made upon the jury by the revelation of the juror and the withdrawal of defendants' counsel was not enhanced by counsel's remarks. The act spoke for itself. The mischief, if any, was already done. In instructing the jury the court told them that each and all of the defendants were in nocent of any attempt to bribe a member of the jury; that they were not responsible, 3. WILLS 50-TESTAMENTARY CAPACITY. Testator, with mind enough to understand ordinary affairs and kind and extent of his property, the natural objects of his bounty, and that he is giving property to devisees mentioned in manner stated, is capable of making a will. 4. WILLS 327 CONTEST TESTAMEN TARY CAPACITY-DIRECTION OF VERDICT. evidence is that testator possessed every quali- UNDUE INFLUENCE On contest of a will for undue influence, contestant is required, in first instance, to assume full burden of proof of allegation. Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge. Suit to contest a will by Grady Holland Sanford against Bertonia Holland and others. From judgment for defendants establishing the will, plaintiff appeals. Affirmed. T. J. Delaney and Neville & Gorman, all of Springfield, for appellant. W. D. Tatlow and Mann, Todd & Mann, all of Springfield, for respondents. The record is very voluminous, as usual in such contests. After a thorough and careful reading of same, the material facts disclosed by witnesses for plaintiff show that T. B. Holland was a man of unusual business ability and good judgment; that he stood very high in the community in which he lived, and, considering his age and the fact that he had been troubled with nervous eczema for many years, his mental faculties remained substantially unimpaired up to the time of his death; that he showed affection for his children and grandchildren, and evinced a desire to divide his property equitably. As to his testamentary capacity, the evidence showed mental clearness and ability to transact all necessary matters of business; that his interest remained keen up to the time of his death in relation to the various matters connected with the rebuilding and restoration of several business buildings that were destroyed by fire the first part of June, 1913. It also appears that after the execution of the first will, called the February will, a fire BOND, J. Suit to contest the will of Tele- occurred, in which many of the buildings machus Blondville Holland, for alleged testa- owned by Mr. Holland on the Public Square mentary incapacity and undue influence, filed and St. Louis street were either entirely or by his grandson Grady Holland Sanford, partially destroyed and rendered unfit for ocafter the settlement of the estate and short-cupancy. This made a great difference in the ly prior to the expiration of the running of the 2-year statute of limitations. The decedent was 77 years old at the date of his death in Springfield, Mo., on July 30, 1913. He died possessed of property variously estimated to be of the value of from $800,000 to $1,000,000. This property consisted chiefly of very valuable business buildings located on and near the Public Square, and a large stock farm of several hundred acres, lying about two miles southwest of the city. On February 19, 1913, the testator executed a will in which he divided his property among certain specified beneficiaries, including his grandson Grady Holland Sanford. Later, on June 17, 1913, a second.will was executed, in which certain changes were made, among which was the decreasing of the bequest to his said grandson. At the trial both wills were introduced in evidence, and a careful comparison discloses that the principal changes made were the elision of a trust created in favor of his son Charles, virtually the same property being bequeathed to him for life with absolute remainders in his sons; the changing of the bequest to his daughter Edith to a stated sum of money, the realty devised to her in the previous will being added to and included in the bequest to his wife Bertonia, and the lessening of the bequest to his grandson by excluding a certain business property on St: Louis street and adding this, also, to the bequest to his wife. income received from these properties, and Mr. Holland, becoming dissatisfied with the apportioning of his property in the February will, which had been divided on the basis of the income from the various properties, decided to have a second will drawn. There upon the will in contest was executed on June 17, 1913, with such changes as have already been indicated. Persons closely connected with Mr. Holland, who had known him for many years, testified as to his mental clarity and grasp of business matters and the usual affairs of everyday life. Dr. Beeson, who attended Mr. Holland during his stay at a sanitarium in Claremore, Okl., where he went for treatment for nervous eczema, testified that on July 2, 1913, his mental condition was good, but that he was worrying over business matters, and that he advised him worry only served to increase his nervousness, the cause of his malady. George Tefft, a distant relation, and who had known Mr. Holland for many years, testified that his mind was clear on June 15, 1913; that Mr. Holland told him at that date that he had been suffering from eczema for years. Mr. Jarrett, father of one of his sons-inlaw, testified that he saw Mr. Holland the last of June, 1913, when he was called to Mr. Holland's home to talk over the reconstruction of the Ross building, of which he wished him to have the contract; that his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mind was clear at that time, and he had no difficulty in expressing his wishes, and that he was "entirely competent to transact his own affairs without assistance." Dr. Ralston, the Holland family physician, who attended Mr. Holland during his last illness and who was in and out the Holland home for years, testified that after his return from Claremore, he was in better condition than he had been for some time; that at times when previously ill he had been delirious; that it was not unusual for a man of his age to be delirious when ill; that he "never saw him when [he] thought he was liable to do any violence"; that he "did not state at any time that he was not in mental condition to make the will"; that his mental condition on the day he witnessed the will was better than it had been for some time; to use the witness' own words, "seemed as well to me as I had seen him in a year"; that he was "cheerful enough that day." Mr. Arch McGregor, one of the witnesses to the signature of the will, testified that Mr. Holland "was cheerful, in good humor, and joked and laughed, too." This was the day the last will was signed. He also testified that Mr. Holland asked Dr. Ralston to make a statement as to the clarity of his mind, and that he knew what he was doing, and that Dr. Ralston wrote it out in longhand. Grady Sanford testified as to the strong affection that existed between his grandfather and himself; that he spent the greater part of his time in his early boyhood with the Holland children, Louise Holland being about his own age; that a coolness arose between them as he grew older and that he did not feel as welcome at the Holland home as formerly; and that when Louise Holland was married, he was away at school, but did not receive an invitation to her wedding. However, none of this testimony showed any active antagonism, nor did his grandfather ever show any lessening of his affection for his grandson. At the close of plaintiff's evidence the court gave a peremptory instruction to the jury to find both issues for defendants and to establish the will. A verdict in accordance was returned, and from a judgment entered thereon, plaintiff duly appealed to this court. [1] M. After the formal proof of the execution of the will and the sanity of the testator at the time, the weight of evidence was against the contestant. Hence it became necessary for him, in order to obtain a submission of the issue of testamentary incapacity, to adduce some substantial evidence tending to support that affirmation, in total default of which there could have been no error on the part of the circuit judge in directing a verdict on that issue in favor of respondents. As to any influence that may have been [2-4] We have been unable to glean from brought to bear in the making of the will in any testimony or evidence adduced by the contest, the evidence in the record shows plaintiff a legal basis for an inference that that Mr. Holland worried considerably about the testator did not possess testamentary his son; that he expressed anxiety to leave capacity when he made his will on June 17, the bequest to him in such shape that it 1913. The facts touching his mental capacity should not be dissipated; that he finally shap-on that date have been summarized in the ed it in such a way that a certain amount preceding paragraph of this opinion, and in would be left him to pay any immediate our judgment neither singly nor collectively debts, and the rest to him for life, with re-do they afford any ground upon which a jury mainders in his sons (Mr. Holland's grand- would be entitled to find the fact to be that children); that after the execution of the February will, a fire occurred, which destroyed much of Mr. Holland's best income property on the Public Square and St. Louis street; that the property in the February will had been divided on the income basis, and, becoming dissatisfied with this will, he had the second will drawn, using the first one as a basis, and made therein the changes that have already been indicated above. There is nothing in the record to show that any one exerted any controlling influence over him in the making of this will. It is true there appears to have been some feeling between Mrs. Holland and Mr. Sanford, the father of contestant, but it does not appear that Mrs. Holland influenced the changing of the bequest to his grandson Grady Holland Sanford. Mr. Holland expressed at various times a desire to divide his property fairly, and appears to have had unusually strong affection for the members of his immediate family T. B. Holland was mentally incapable, on June 17, 1913, of executing the will which he then made. The standards and tests of mental capacity to make a will have been so repeatedly announced in this state and are so firmly established that it is hardly necessary to refer to citations. A testator with mind enough to understand the ordinary affairs of life and the kind and extent of his property and who are the natural objects of his bounty, and that he is giving his property to the devisees mentioned in his will in the manner therein stated, is capable of making a will under the law of this state. Hahn v. Hammerstein, 272 Mo. loc. cit. 259, 198 S. W. 833; Gibony v. Foster, 230 Mo. loc. cit. 131, 130 S. W. 314; Winn v. Grier, 217 Mo. 420, 117 S. W. 48; Bensberg v. Washington University, 251 Mo. loc. cit. 658, 158 S. W. 330. There is no evidence in this record that the testator lacked any one of these essential qualifications to a valid disposition of his property at ecuted. Indeed, the only conclusion which can be drawn from the evidence, taken singly or conjunctively, is that in the making of his testament, he possessed every qualification prescribed by the laws of this state to enable him to make a valid disposition of his property. In such cases the settled rule is that the trial court should direct a verdict upholding the will. McFadin v. Catron, 138 Mo. loc. cit. 226, 227, 38 S. W. 932, 39 S. W. 771; Story v. Story, 188 Mo. loc. cit. 128, 129, 86 S. W. 225; Teckenbrock v. McLaughlin, 209 Mo. loc. cit. 540, 108 S. W. 46; Hayes v. Hayes, 242 Mo. loc. cit. 172, 145 S. W. 1155. within the scope of wifely duty, and are not the predicates of undue influence. Lorts v. Wash, 175 Mo. 487 loc. cit. 505, 75 S. W. 95; Seibert v. Hatcher, 205 Mo. 83, 102 S. W. 962; Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84; Winn v. Grier, 217 Mo. loc. cit. 459, 117 S. W. 48; Bennett v. Ward, 272 Mo. 671, 199 S. W. loc. cit. 947. We think the peremptory instruction was justified on both issues by the state of the record, and that the judgment is manifestly, right, and should be and is affirmed. It is so ordered. All concur, except BLAIR, J., not sitting. [5, 6] III. As to the issue of undue influence, under the law of this state, the contestant is required, in the first instance, to assume the full burden of proof of that allegation, and it is impossible to find in any of the facts and circumstances contained in this record aught that shows in the remotest degree that when the testator made the will in ques- (Supreme Court of Missouri, Division No. 2. tion his mind was dominated and controlled to such an extent that it reflected the designs and wishes of other persons than himself. Hayes v. Hayes, 242 Mo. loc. cit. 168, 169, 145 S. W. 1155. A contest of a will is a legal and statutory action. In such cases whether there is any substantial evidence tending to prove the alleged grounds of contest is always, primarily, a question of law to be determined by the court. If that is resolved against the contestant, then nothing remains to be tried by a jury. If, however, it is resolved in favor of the contestant, then the case must go to the triers of the fact, whose peculiar province it is to determine the credibility of witnesses, the effect of testimony, and the force of legally allowable inferences. In other words, whether a given set of facts and circumstances have any probative force whatever is a question at the threshold of the case which the court must determine, and, when this has been ruled adverse ly under the applicatory law, the case should be taken from the jury. [7] The circumstances relied upon by appellant to support the inference of undue influence appear to be that Mrs. Holland was present when the February will was made by the testator, and at the trial it was shown that marginal pencilings in her handwriting had been made on that will; that she went to Claremore where her husband was taking a cure, and dispensed with a nurse upon his return home, and other attentions to his comfort and assistance in signing checks for the payment of household expenses, all of which, according to the theory of appellant, tended to prove a fiduciary relationship, and there fore imposed the burden upon respondents to show that the will in question was not the result of undue influence. We cannot assent to that view. All of such offices of affection and interest or business services were distinctly BUDDY v. UNION TERMINAL RY. CO. (No. 19414.) Dec. 23, 1918.) FARIS, J. Plaintiff, then approaching 10 years of age, was hurt in 1904, by the alleged negligence of defendant. In 1913 he sued defendant laying his damages at $30,000. Upon a trial had toward the close of the year 1915, proof was adduced pro and con. At the close of all of the evidence defendant asked, and the court nisi gave to the jury a peremptory instruction that under the pleadings and the evidence their verdict should be for the defendant. Thereupon plaintiff took a nonsuit with leave. After an unavailing motion to get this nonsuit set aside he appealed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes poisoning was caused by a subsequent injury nine years later." Plaintiff in his petition invokes as his sole ground of recovery application of the wellknown doctrine of the "turntable cases" to The witnesses for plaintiff--the physician an injury accruing from certain small flat cars left standing unblocked, unlocked, and the occurrence of the injury to him. Their excepted-were schoolmates at the time of unbraked upon defendant's track then under ages at that time were from 10 to 13 years. construction under such situation, it is aver-Eleven years had elapsed from the date of red, as to make such cars an attractive play- this injury till they testified in the case. thing for children. Defendant's answer is a Much divergence of opinion and much deviageneral denial, and a plea that plaintiff was tion from what must have been the actual , when hurt, a trespasser upon defendant's facts are to be expected. All this we find. private premises, and that in this situation Plaintiff's witnesses all agree that the cars his injuries were wholly caused by his own were not fastened to the track, nor locked, contributory negligence. nor blocked, nor braked, nor even furnished with brakes. On other vital points they varied greatly. In an effort to fairly present the facts upon the points: (a) How large were these cars; (b) how many pupils it took to move them; and (c) what plaintiff was doing when he was hurt-we excerpt the testimony of all of plaintiff's witnesses on all these points. The facts-and it is already apparent that this case turns wholly upon the facts-run briefly thus: Plaintiff, when hurt, was 9 years and 8 months old. He was a pupil in the fourth grade of the Floyd School in St. Joseph. Defendant was then engaged in constructing an extension of its tracks upon its right of way at a point about 150 feet distant from this school. In this construction work it used among others, two small, eight-wheeled, flat cars, which the evidence on plaintiff's part shows to have been from 16 to 20 feet long, while that of defendant shows that these cars were at the time standard flat cars from 28 to 30 feet in length. We must, however, perforce the well-settled rule in a case wherein a de murrer to the evidence has been sustained, look only to the plaintiff's evidence on contradicted points. During the time of the building of this extension these small flat cars stood, when not in use, upon defendant's track for a period of from 2 to 3 months. Children from the Floyd School, among whom was plaintiff, over the objections of defendant, however, were in the habit of pushing these cars up and down the track, on which there was a slight grade of 3 inches per 100 feet. About the 1st day of June, 1904, while some 6 or 7 or more of plaintiff's fellow pupils-whose ages . ranged from 10 to 13 years-were engaged in pushing one of these cars on this track they ran it against plaintiff and caught and pinched his left leg between the axle of the car and some construction material, namely, piling lying along the track, so that the calf of his leg was torn and the muscles thereof were in part destroyed. Subsequently, and after some three months the injury wholly healed externally, but left the leg of plaintiff in a slightly undersized and a somewhat weakened condition. Some 9 years after this accident, and on account of a fresh injury to his toe, blood poison developed, and it became necessary by reason thereof to amputate plaintiff's leg. Answering categorically, the single expert witness who testified as to the proximate cause of the amputation said that The plaintiff, testifying for himself, said: "From the time of my accident and for 2 or 3 months before they were in the habit of leaving small flat cars on the track by the school. There were two cars. They were small, ordinary flat cars, about half, about 16 to 20 feet, between 16 and 18 feet. They were lighter, very much lighter, than other freight cars." Upon the point of how many children it required to put the car in motion upon this track, he says "6 children could move the car." Touching what he was doing when hurt he says: "When I first saw the car, it was probably half a block or a little over below the school, being pushed north by about 6 or 7 children 8 or 9 or 10 years old. I was standing between the ends of the piling when the car got to me. I don't remember whether I was pushing or getting ready to push. I started to push the car." James V. Riley, approximately 10 years old when plaintiff was hurt, testifying for plaintiff, said: "The cars were probably 16 or 18 or 20 feet long. They were undersized flat cars." Upon the point of the force required to move these cars he is not definite, but speaking to the situation in this behalf at the very moment that plaintiff was hurt said: "We were playing with the car at the time he was hurt. Maybe a dozen children had hold of it. We were pushing it north at the time it caught him. He got caught between the boxing and the poles that were lying along the track, between the boxing and the end of the poles. I don't know what he was doing at the time." Charles F. May, who was 11 years old at the time of the injury to plaintiff, said for plaintiff, on the points mentioned, this: "It was a little, small flat car, 20 feet long or "The former injury had nothing to do with a little over; it might have been a little short |